Opinion
No. 10-05-00345-CR
Opinion delivered and filed December 7, 2005. DO NOT PUBLISH.
Appeal from the 40th District Court, Ellis County, Texas, Trial Court No. 29204-CR. Appeal dismissed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Appellant Victor L. Burnett, pro se, filed a notice of appeal after pleading guilty to the offense of impersonating a public servant. Under a plea bargain, Burnett received deferred adjudication community supervision for five years and a $2,500 fine. The Trial Court's Certification of Defendant's Right of Appeal, which is signed by Burnett's trial counsel, states that "the defendant has waived the right of appeal." At the plea agreement hearing, Burnett testified that he signed a waiver of his right to appeal and that he did not wish to appeal. In response to the trial court, Burnett's counsel stated that he was satisfied about Burnett's sanity, competency, and understanding of the proceedings and the plea agreement documents that Burnett had signed. Burnett's notice of appeal and docketing statement indicate that he is challenging venue, stating that the alleged offense did not occur in Ellis County. His notice of appeal additionally alleges that he was under the influence of Librium at the time he entered his guilty plea. On September 29, 2005, we sent a letter to Burnett stating that his appeal is subject to dismissal based on the trial court's certification. We stated that "the Court may dismiss this appeal, unless within 14 days after the date of this letter, we receive a certification stating that Burnett has a right to appeal or Burnett shows other grounds for continuing the appeal." Burnett's response asserts that he is appealing to contest jurisdiction "based on pretrial motions" and that the trial court did not sign the waiver of appeal. The State responded with a copy of Burnett's waiver of his right to appeal that is signed by the trial court. A valid waiver of the right to appeal will prevent a defendant from appealing without the trial court's consent, but both plea-bargaining and non-plea-bargaining defendants can appeal jurisdictional issues. Monreal v. State, 99 S.W.3d 615, 620, 622 (Tex.Crim.App. 2003). Venue, however, is not a jurisdictional issue. See Braddy v. State, 908 S.W.2d 465, 468 (Tex.App.-Dallas 1995, no pet.) ("`Venue,' as applied to criminal cases, means the place in which the prosecution is to begin. Venue is not synonymous with `jurisdiction,' which is the power of the court to hear and determine the case." (citations omitted)); see also State v. Blankenship, 170 S.W.3d 676, 681 (Tex.App.-Austin 2005, no pet. h.) ("Venue is distinct from jurisdiction. The terms are not synonymous." (citations omitted)); cf. Fairfield v. State, 610 S.W.2d 771, 778-79 (Tex.Crim.App. [Panel Op.] 1981) (discussing difference between jurisdiction and venue and affirming trial court's refusal to withdraw guilty plea despite substantial fact issue on venue). The trial court's certification, the reporter's record from the plea hearing, and the signed waiver of the right to appeal all affirmatively show that Burnett waived his right to appeal, and Burnett did not receive the trial court's permission to appeal on issues raised by written pretrial motions. Thus, we dismiss this appeal. See TEX. R. APP. P. 25.2(a)(2); Monreal, 99 S.W.3d at 620, 622; Ogden v. State, 134 S.W.3d 487 (Tex.App.-Waco 2004, no pet.); cf. Willis v. State, 121 S.W.3d 400, 403 (Tex.Crim.App. 2003) (trial court's subsequent permission to appeal controls over previous waiver of right to appeal).